Xiaguan District People's Court of Nanjing (2005) Xia Chu Zi No.1 Public Prosecution Organ criminal judgment, Xiaguan District People's Procuratorate of Nanjing. Defendant A (deaf-mute), female,1born in Xianyang City, Shaanxi Province in June, 1970, Han nationality, language and technology education, unemployed. On April 1 2 005, he was criminally detained on suspicion of illegal detention and was arrested on April 3 0 of the same year. Now detained in Nanjing detention center. Defender, lawyer of Jiangsu Gefei Law Firm. The People's Procuratorate of Xiaguan District, Nanjing, prosecuted Defendant A for the crime of illegal detention. No. (2005), filed a public prosecution with our hospital on August 3, 2005. After the court accepted the case, a collegiate bench was formed according to law and the case was heard in public. The People's Procuratorate of Xiaguan District of Nanjing appointed a prosecutor to appear in court to support the public prosecution, and defendant A, his defender and sign language interpreter attended the proceedings. The trial is now over. The People's Procuratorate of Xiaguan District, Nanjing accused that on March 28th, 2005, the defendant Ai and her husband B cheated the victim C and others from Chengyang City to this city for theft under the guise of selling the zodiac. On March 30th of the same year, C told A that he didn't want to steal and wanted to go home. A told B the idea of C, and B and others hit C that night. A not only didn't stop it, but also arranged for D and others to watch C the next morning to prevent it from running away. At 5 o'clock in the afternoon on the same day, the victim C and D did not pay attention and jumped from the window, causing minor injuries. In view of the above facts, the public prosecution agency presented the defendant's confession, the victim's statement, the witness's testimony, the medical record, the diagnosis, the injury identification, the arrest process, the household registration certificate, the disabled person's card, and the criminal photography photos in court. The public prosecution agency believes that defendant A's behavior has constituted the crime of illegal detention and should be punished according to the relevant provisions of the Criminal Law of People's Republic of China (PRC). It was found through trial that around March 28, 2005, the defendant A and her husband B (handled separately) tricked the victim C of Chengyang City into stealing in this city under the guise of selling the zodiac, and lived in the rented house of A in Xiaguan District of this city. On March 30th of the same year, C told A that he didn't want to steal and wanted to go home. A told B the idea of C, and B and others played C for a long time that night. When A woke up, he saw C being beaten and kneeling on the ground, with blood all over his nose, mouth and ground. A not only didn't stop it, but also arranged for D and others to watch C the next morning to prevent it from escaping. At 5 o'clock in the afternoon, the victim C became angry and was beaten at the thought that he could not go home. He took advantage of the opportunity to go to the toilet and jumped out of the window while D was not paying attention, causing subdural hematoma on the left side of his head, hematoma in the right parietal sulcus and fracture of his right scapula. After receiving the police, the public security organ took the defendant A and his residence to the police station for examination and arrest. Appraised by the Forensic Medicine Identification Center of Tongchuan Public Security Bureau of Shaanxi Province, the victim C was slightly injured. During the trial of this case, the victim C filed a criminal incidental civil action. After mediation in court, defendant A compensated the victim for all expenses totaling 65,438 yuan+0,500 yuan, which was settled immediately. During the trial, defendant A had no objection to the above facts, and the statement of victim C and witness testimony can mutually confirm the fact that defendant A was illegally detained. Documentary evidence such as medical records, diagnostic documents and injury identification documents confirming the victim's injury; The household registration certificate and disability certificate confirmed the defendant's natural situation and he was deaf and dumb. In addition, the arrest process, criminal photographs and other evidence are enough to confirm. Our court believes that defendant A forced victim C to commit theft, locked it in his rented house, and let others beat it, which made victim C lose his freedom of movement, and his behavior constituted the crime of illegal detention. Defendant A is a deaf-mute and can be given a lighter punishment according to law. Defendant A pleaded guilty and was given a lighter punishment as appropriate. The fact that the People's Procuratorate of Xiaguan District of Nanjing accused the defendant A of committing the crime of illegal detention was clear, the evidence was true and sufficient, and the accused was established. The reason for requesting a lighter punishment is correct and adopted. Defender of Defendant A thinks Defendant A has the defense reason of surrender. After investigation, defendant A confessed his criminal behavior only after being arrested by the public security organs according to the testimony of witness Nie Tao, which should not be considered as surrender according to law, and the opinions of the defender were not adopted. Defenders believe that the defendant is deaf and dumb, and he has a good attitude of pleading guilty and repenting after being brought to justice, and compensated the victim. The reasons for a lighter punishment according to law or as appropriate are correct and adopted. Accordingly, in order to protect citizens' personal freedom rights from infringement, our hospital will give a lighter punishment to the crime according to the provisions of Articles 238, 19, 72, paragraph 1, and 73, paragraph 2 of the Criminal Law of People's Republic of China (PRC), combined with the facts, nature and circumstances of the crime committed by the defendant and the degree of harm to society. The verdict is as follows: Defendant A committed the crime of illegal detention and was sentenced to two years' imprisonment and suspended for three years (suspended). If he refuses to accept this verdict, he can appeal to the Intermediate People's Court of Nanjing City, Jiangsu Province through our court or directly within ten days from the second day of receiving the verdict. If a written appeal is filed, one original and two copies of the appeal shall be submitted. Xiaguan District People's Court of Nanjing August 2005 19
Case: Wang and Zou lived together for 3 years. Later, because Wang fell in love with someone else, Zou broke up. Wang offered to compensate Zou for her youth loss, and Zou promised to give her 2000 yuan. Later, Wang was very angry and found his cousin Cui to help her vent her anger. On June 5438+10/October 65438+April 2003, Wang, Cui, Zhai and others cheated Jumou and his wife Yang into a hotel in the name of renting a car, and detained Jumou and Yang (who were identified as minor injuries by forensic doctors) by dragging, punching and kicking. During the period, it is necessary to compensate Zou Qingchun for the loss of 30,000 yuan. Later, the next morning, he took them to the Wangs' house and forced him to write an IOU of 30,000 yuan. After detaining his Santana car and his wife Yang, let Zou go home and get the money. Because Zou reported the case, he filed a case.
Disagree: There are three different opinions about the nature of this case.
The first opinion is that Wang and others subjectively have the purpose of illegally obtaining other people's property and objectively take coercive measures. Therefore, the behavior of Wang and others constitutes the crime of extortion.
The second opinion is that Wang and others hold and detain others by deception and violence for the purpose of extorting property, and their behavior has constituted the crime of kidnapping.
The third view is that the violent means of Wang and others are not obvious, and their main purpose is not to extort property, but out of temporary anger, and their behavior constitutes the crime of illegal detention.
Comment: The author agrees with the second opinion that Wang and others constitute the crime of kidnapping.
The crime of extortion refers to the act of extorting public and private property by threatening or coercing the owners and custodians of public and private property for the purpose of illegal possession. There are two forms of threats and intimidation here, oral and written, which have certain timeliness and space, and do not have the realistic possibility of immediate violence on the spot. The crime of kidnapping refers to the act of forcibly hijacking or controlling others by means of violence, coercion or anesthesia for the purpose of extorting property or meeting other illegal demands, taking advantage of the close relatives of the kidnapped person or others' concerns about the kidnapped person's safety. Subjectively, this crime has the purpose of extorting property or satisfying other illegal demands. If the perpetrator abducts others for other purposes and motives, he has the intention of extorting property and then extorting property, and should also be punished as kidnapping. However, if the perpetrator illegally deprives others of their personal freedom for the purpose of debt collection, it only constitutes the crime of illegal detention, not this crime. The crime of illegal detention refers to the act of illegally depriving others of their personal freedom by detention or other coercive means. Subjectively, this crime is intentional, that is, the actor knows that his behavior will lead to the harmful result of depriving others of their personal freedom rights, and hopes that this result will happen, but not for the purpose of selling or extorting property.
The first opinion is that Wang and others constitute the crime of extortion, ignoring the fact that Wang and others illegally detained Ju and Yang. The main feature of the crime of extortion is that it causes psychological fear and pressure to the victims and their relatives through mental coercion. The crime of extortion does not restrict the personal freedom of the victim. In this case, Wang and others began to restrict the personal freedom of Ju and Yang, and illegally detained their Santana cars, and then forced Ju to write a loan of 30,000 yuan, which did not meet the characteristics of extortion. In this case, it is an obvious feature of the crime of kidnapping that Wang and others take Ju's wife hostage. The third view is that Wang and others constitute the crime of illegal detention. Illegal detention is not for obtaining property. In this case, Wang and others have no debt relationship with Ju, so it is impossible to collect debts by detention. Therefore, the author believes that it cannot be classified as illegal detention. Judging from this case, Wang and others had the idea of compensating their youth losses before the action, which was not a legal debt, indicating that they subjectively had the purpose of extorting property; Objectively speaking, Wang, together with Cui and Zhai, illegally detained Ju and Yang by dragging, punching and kicking, and demanded a youth loss of 30,000 yuan from Ju, forcing Ju to write a debt of 30,000 yuan. In order to make Ju pay 30 thousand yuan, Ju's wife Yang is still in custody, which fully conforms to the characteristics of kidnapping crime. Therefore, the behavior of Wang and others constitutes the crime of kidnapping.